Old Bacon Face

BRIAN: At the turn of the 19th century, many Americans would not have been surprised to find a Supreme Court entangled in politics. After all, America was still a very new country, so there really weren’t formal political parties. But there were two major political factions. Am I right about that, Peter?

PETER: Yeah. I think it’s probably best to call them factions. You got the Federalists. That’s guys like John Adams and Alexander Hamilton. Opposing them are the Republicans, led by Thomas Jefferson. By 1800, the Supreme Court was dominated by Federalists. That’s because America’s first two presidents, Washington and Adams, had put those justices in office. Many of them were openly partisan.

KEVIN GUTZMAN: As the first Chief Justice John Jay was leaving office, he actually sent President Washington a letter saying that the chief goal of his chief justiceship had been quote, “the success of your administration,” unquote.

PETER: That’s legal scholar Kevin Gutzman.

KEVIN GUTZMAN: There was kind of an understanding, well, frankly, cooperative activity between the executive and the judiciary.

PETER: Gutzman says Federalist justices didn’t just write thank-you notes to their political patrons. They would often express their political views very publicly. One place they did so was in the lower courts. When the high court was not in session, the justices traveled around the country, serving as judges on federal circuit courts, a practice known as riding circuit.

KEVIN GUTZMAN: Supreme Court justices very energetically sought out people to have indicted, then to have prosecuted, and finally, to issue stiff sentences and giving grand jury charges in which they often slipped over into, frankly, partisan presentations.

ED: President John Adams had passed the Sedition Act, which made it possible to prosecute people who criticized the federal government. That law, combined with a highly partisan environment and Supreme Court justices who were willing and able to go after government critics, set the stage for a dramatic showdown, a showdown that centered on Supreme Court Justice Samuel Chase.

PETER: Chase was a staunch Federalist appointed to the Court by George Washington. As a justice, he openly campaigned on behalf of John Adams. His personality was as tough as his ruddy complexion, which earned him the nickname Old Bacon Face. On the bench, he didn’t mince his words.

KEVIN GUTZMAN: Chase was considered a nasty guy, because he called Republicans names. He accused them of being anti-Christian. He said they were proponents of democracy, which at the time meant the horrors of the ongoing French Revolution and the idea of majority rule was totally objectionable. Some atheists in politics were pushing for that and of course, meaning Thomas Jefferson.

PETER: The Sedition Act allowed Justice Chase to go after journalists who wrote slanderous things about President Adams and his policies. In one case, Chase targeted a salty pamphlet writer named James Callender.

KEVIN GUTZMAN: Chase told two different people, one of whom was a complete stranger to Chase, that he was going to have a grand jury impaneled. That grand jury would indict Callender, and he would then be tried and convicted. And ultimately he would be given a stiff sentence, which kind of puts me in mind of Stalin saying, first we try them. Then we shoot them.

PETER: True to his word, Chase had Callender convicted. The pamphlet writer received a sentence of nine months in prison and a $200 fine.

KEVIN GUTZMAN: All these things together amounted to making him, basically, the opposite of what a Jeffersonian Republican thought a judge ought to be. He ought to be a respecter of due process. He ought to be a respecter of freedom of speech. And well, when came right down to it, he ought to be a Republican.

ED: So it should be no surprise that when Thomas Jefferson and Republicans gained control over Congress and the White House in 1801, they turned their attention to the judicial branch.

KEVIN GUTZMAN: Republicans decided they would use the impeachment power to try to remove the most egregious offenders in the federal judiciary against the principle that federal judges should be politically neutral or at least they shouldn’t be publicly partisan.

ED: And sitting there on the Supreme Court–

KEVIN GUTZMAN: Chase is easily the biggest, fattest target.

ED: At Jefferson’s request, the House of Representatives began a proceeding that would be unheard of today. In 1804, they voted to impeach a Supreme Court justice. Essentially, they accused Chase of the demonstrable political bias, pointing to several grand jury cases, including Callender’s. The Senate, however, voted against conviction. And Chase was saved. He remained on the Supreme Court until his death in 1811.

PETER: Chase’s impeachment and acquittal is often held up as a defining moment in determining the balance of power between the Supreme Court and the other two branches of government. The impeachment served as a warning to justices to keep their political opinions to themselves. And the acquittal sent the message that sitting justices are off limits, regardless of their political leanings. But in Gutzman’s view, Chase’s acquittal has set another important precedent that put the justices on a pedestal, too far above the fray to be held accountable.

KEVIN GUTZMAN: Both Chief Justice Rehnquist and Justice O’Connor have written histories of the Supreme Court in which they said, well, one of the most important things that ever happened in America to give us an independent judiciary was Chase’s acquittal. In what sense should the judiciary be independent? Obviously, it should be independent when it comes to answering for outcomes in particular cases, right? But saying before a man is indicted he’s going to be convicted and he’s going to get a stiff sentence, this to me goes beyond independence. And it amounts to abuse. I don’t think anybody would try to justify it.

PETER: Well, Kevin, many historians would say that the Court got the message, and it backed off. They understood that if it got too embroiled and entangled in a power struggle with the other branches, well, maybe they’d lose, then. As a result, the Court has stayed away from controversy through much of its history. Of course, there are moments. They’re the ones that show up in the textbooks. But by and large, court justices have at least pretended to be above the fray and to be making decisions based on their interpretation of the Constitution. That’s the conventional interpretation. Is it one that you buy?

KEVIN GUTZMAN: People would say, well, after his acquittal, he didn’t behave that way anymore. But that doesn’t mean the precedent doesn’t stand and it hasn’t had a negative effect. What the Chase precedent stands for is that it will not be our rule that, if judges begin behaving in a partisan way, they can expect to be impeached. That’s what the Chase precedent should have stood for if he had been convicted. That’s what it would have stood for. And what it stands for now is regardless how politically they behave, they will not be impeached.

PETER: Right, right.

KEVIN GUTZMAN: And so we end up with a situation in which, ultimately, all the most important questions of domestic social policy are going to be decided by courts. That is not exactly a Republican system.

PETER: Kevin Gutzman is a professor of history at Western Connecticut State University and author of The Politically Incorrect Guide to the Constitution.